9911796707
TMI Blog2011 (2) TMI 1240X X X X Extracts X X X X X X X X Extracts X X X X ..... toms, Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata dated 11th August, 2004 in Appeal No. ESM-193 of 2003 Order No. A-538/KOL/04, whereby, the claim for refund of the excess excise duty, paid by the appellant, was rejected and the order passed by the Commissioner (Appeals), Customs & Central Excise, Ranchi was confirmed. The appellant had made claim for refund under Section 11-B of the Act, 1944. 2. Learned senior counsel appearing for the appellant submitted that the Bharat Heavy Electricals Limited (BHEL), Tiruchirapalli, which is a Government of India Undertaking, placed an order dated 8th August, 2001 to the appellant-company for machining and teeth cutting of the three numbers of raw castings supplied by it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, therefore, an application for refund under Section 11B of the Act, 1944 was preferred, which was received by the office of the Deputy Commissioner of Central Excise Division, Dhanbad on 25th September, 2002. A certificate of the Chartered Accountant was also supplied to the effect that the amount of excess excise duty, so paid, has not been paid by the costumer of the appellant. The same are at Annexure-7 and at Annexure-10 to the memo of the appeal. The certificate of the Chartered Accountant is dated 21st September, 2002. 5. It is further submitted by learned senior counsel appearing for the appellant that the aforesaid show cause notice issued by the Deputy Commissioner, Central Excise Division, Dhanbad was replied on 18th Febru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 7th August, 2003, an appeal was preferred before the Customs, Excise & Service Tax Appellate Tribunal, East Zonal Bench, Kolkata being Appeal No. ESM-193 of 2003. The Tribunal has also not properly appreciated the fact that incidence of duty has not been passed on to the Bharat Heavy Electricals Limited (BHEL). The certificate issued by the Chartered Accountant has also not been properly appreciated and the appeal preferred by the appellant was dismissed. The Tribunal has also not properly appreciated the decision rendered by the very same Tribunal in Appeal No. ESM-104 of 2003 dated 24th December, 2003 [McNally Bharat Engineering Company Limited, Dhanbad (appellant) v. CCE, Ranchi] as reported in 2004 (61) RLT 207 (CESTAT-Kol.) = 2004 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , let the matter be remanded to the Tribunal for deciding afresh the claim of the appellant for refund of the excess excise duty paid by it. 9. Learned senior counsel appearing for the respondent mainly submitted that there is a presumption under Section 11B of the Act, 1944 that the manufacturer has passed on the incidence of duty upon it's customer. The appellant has failed to rebut the presumption under Section 11B of the Act, 1944. Moreover, there is a consistent finding of the fact in order-in-original, order-in-appeal as well as in the order passed by the Tribunal and, therefore, this Court may not interfere with these consistent finding of facts and, therefore, the present Tax Appeal preferred by the appellant deserves to be di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not been paid or passed over to the Bharat Heavy Electricals Limited (BHEL), Tiruchirapallia Government of India Undertaking. (iii) It further appears that despite the certificate was given, neither it has been properly appreciated by the Deputy Commissioner, Central Excise Division, Dhanbad nor by the Commissioner (Appeals), Customs & Central Excise, Ranchi nor by the Customs Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata. (iv) It further appears that the only reason given in the show cause notice that burden of duty has also been passed to the buyer. Show cause notice dated 5th February, 2003 was received by the appellant, wherein, following ground was mentioned :- &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DVAT/CENVAT credit, whatsoever, arises. This aspect of the matter has also not been properly appreciated by the Tribunal. 11. In view of the aforesaid facts, reasons and also looking to the decision rendered by the Customs Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata in between the very same appellant v. CCE, Ranchi as reported in 2004 (61) RLT 207 (CESTAT-Kol.) = 2004 (168) E.L.T. 249 (Tribunal), we hereby quash and set aside the order passed by the Customs Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata in Appeal No. ESM-193 of 2003 dated 11th August, 2004 Order No. A-538/KOL/04 and we hereby remand the matter to the Customs Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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